VEHICLE TRACKING SOLUTIONS SILENT PASSENGER SUBSCRIPTION AGREEMENT

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VERSION NUMBER 3.0SPS(CW) – AUGUST 2017; THIS AGREEMENT PERTAINS TO FLEETS WITH A MINIMUM OF 75 UNITS.

Please read this agreement carefully.
ENTERING INTO THIS AGREEMENT WITH VEHICLE TRACKING SOLUTIONS OR YOUR USE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, CONSTITUTES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY; THIS AGREEMENT CONTAINS AN AUTO-RENEWAL PROVISION.

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Terms and Conditions

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1. INTRODUCTION.

In this Service Agreement (the “Agreement”), “you” and “your” refer to the customer (“Customer”) and its agents, including each person or entity listed in your account information as being associated with your account as end users, and “we”, “us” and “our” refer collectively to Vehicle Tracking Solutions, LLC and its wholly-owned subsidiaries (“Vehicle Tracking Solutions” or “VTS”). This Agreement sets forth our obligations to you, and your obligations to us in relation to the purchase of VTS’s subscription-based real-time GPS/Cellular fleet management service (the “Service” or the “Services”). In addition, this Agreement shall govern any vehicle equipment installation services (the “Installation Services”) purchased or provided to you by VTS. Subsequent orders placed for additional units or services (“Add Ons”) shall be governed by the terms and conditions of this Agreement.

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2. TERM.

2a. Initial Term/Renewal. This Agreement (and, as applicable, for any subsequent Add Ons) begins upon the earlier of the date of initial Equipment activation or the first day of the month immediately following the date of Agreement execution (hereinafter the “Effective Date”) and continues for 60 months (the “Initial Term”). AFTER THE EXPIRATION OF THE INITIAL TERM AND ANY SUBSEQUENT RENEWAL TERMS, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL ONE YEAR TERM (“Renewal Term”), until terminated by either party upon no less than sixty (60) days advanced written notice (together with the Initial Term and the Renewal Term, the “Term”) or upon the execution of a renewal. During each Renewal Term, under the automatic renewal provision, the fees charged will be no greater than the existing price for the renewed services.

2b. Additional Equipment/Account Modifications. All hardware provided by VTS in connection with the Services (“Equipment” or “AVL device”) shall be, and remain, at all times, the property of VTS. Any subsequent GPS/Cellular-based units added by Customer and installed, serviced or supported by VTS after the commencement of this Agreement shall be deemed Equipment and will be covered pursuant to the terms of this Agreement at the prices and for the term as set forth in this Agreement. All fees shall be paid in the amount and on the dates set forth in the on the Customer Order form set forth herein upon first activation and the Term for any new Equipment shall expire as per the Term set forth in Section 2a above.

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3. INSTALLATION OF EQUIPMENT

In the event that VTS is providing installation services, the following additional terms and conditions shall apply:

3a. List of Vehicles/Facilities. Customer shall provide VTS with a list of vehicles to be included and covered by this Agreement. The list shall include each vehicle’s year, make, model, vehicle identification number (VIN), and license plate number. VTS reserves the right to choose the location at which it will complete all installations.

3b. Initial Installation Procedure. VTS shall install Equipment for each Customer-owned vehicle listed on Exhibit A of this Agreement at the locations agreed upon by the parties, provided that all initial vehicle installation work performed by VTS shall occur between the hours of 0800 and 1600 Tuesday through Friday. VTS shall allocate (and provide free of charge) 45 minutes per vehicle of onsite time for each installation. Any additional installation time required will be billed at the rate of $85/hour. If a vehicle is already equipped with a VTS tracking device under the terms of an earlier VTS agreement, VTS will remove the existing tracking device and take possession of the previously installed equipment. If Customer chooses to do its own installation or if VTS utilizes a subcontractor for installation and shipping is required, Customer is responsible for shipping costs. (Shipping costs are nominal, typically <$10/unit, with further efficiencies for multiple units simultaneously shipped). Notwithstanding the above, the initial installation, upon Agreement execution, there shall be no shipping costs charged.

3c. Follow-up Work or Work to be performed pursuant to Warranty. If any follow-up work or work to be performed pursuant to a warranty is needed, VTS shall perform such work during VTS’s normal business hours of 0800 and 1600 Tuesday through Friday at the locations designated by the Customer in Exhibit A or as agreed upon by the parties. If shipping is required for equipment to complete the follow-up work, Customer is responsible for shipping costs.

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4. VTS EQUIPMENT

4a. The AVL device provided as part of the Service shall be covered by warranty for the Term. In the event that any equipment does not function properly, all such claims must include the model number and IMEI/MEID number, and a description of the nature of the issue. VTS shall, at its option, either repair, replace or correct any such issues with the Equipment. VTS does not warrant any devices other than the AVL device.

4b. A service fee of $50 (plus actual tolls incurred) will be charged if any appointment for service is not canceled at least 12 hours before its scheduled time on weekdays, and $75 (plus actual tolls incurred) if appointment is not canceled at least 12 hours before its scheduled time on weekends.

4c. If any device is deemed to have failed due to any damage to hardware or related Equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation by anyone other than VTS, a non-warranty replacement must be purchased by Customer at a cost of $249, which covers replacement cost of such.

4d. Customer must return all Equipment to a place and in a manner designated by VTS, including VTS tracking devices in its possession at the end of the Term unless otherwise notified by VTS. VTS will charge (and Customer agrees to pay) $249 for each Unit that, in VTS’s sole discretion, is not returned in good working condition within 30 days. (Equipment returned to VTS is tested upon receipt at VTS headquarters; testing is designed to insure unit remains functional – casing subject to normal wear and tear, but intact and unit continues to receive GPS signal and transmit via cellular network.) If Customer requests, (i) VTS will test and remove all equipment for a fee of $35/unit. As a part of this service, VTS will provide documentation of equipment in good working order at time of removal, or (ii) at no charge, VTS will verify before removal that each unit is in good working order, provided customer does not damage the unit in removal or return shipment to VTS, there will be no charge for units not returned in good working order.

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5. TRAINING.

VTS will provide VTS Software System training on a remote basis at no additional charge to the Customer during VTS’s normal business hours from Monday to Friday. Customer must contact VTS in advance at 1-800-671-5222 in order to schedule a mutually acceptable training schedule.

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6. SERVICE

6a. Availability. Service may be temporarily refused, limited or otherwise interrupted due to governmental regulations or orders, system capacity limitations, Customer’s or common carrier’s interconnection capabilities, atmospheric or topographical conditions, equipment failure, modification, repair, upgrade or relocation.

6b. Use. Customer will use the Service for lawful business purposes only and will not at any time resell, transfer, or assign the Service.

6c. Security. VTS shall treat all information supplied to it by Customer as strictly confidential and proprietary information of Customer and VTS shall not permit release of information to other parties or make any public announcement or publicity releases without Customer’s prior written authorization. This paragraph may be replaced by a mutually agreed separate Confidentiality Agreement at the discretion of Customer. Notwithstanding the foregoing, VTS cannot and will not guarantee 100% security with respect to the Service. VTS shall not be liable for any damages related to any breaches of security in any way related to Customer’s use of the Service. VTS reserves the right to intercept, disclose or otherwise use any Customer communication if it is necessary to do so to provide the Service, diagnose system troubles, protect VTS’s rights or property, or if required by law, regulation, or court order.

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7. SILENT PASSENGER SERVICE LEVEL PERFORMANCE

Silent Passenger has been designed to deliver fleet management telematics services. In the event the Services do not meet the needs of Customer, an email shall be sent to support@vehicletracking.com detailing the issues experienced and vehicles affected. While VTS strives to provide the best cellular coverage available, due to the inherent nature of cellular coverage, VTS is not responsible for any cellular conditions impeding service. VTS shall use commercially reasonable efforts to rectify any Customer issues in accordance with VTS’s Service Level Agreement which is attached and included in the terms of this Agreement. If VTS does not or cannot rectify these issues, and VTS determines such issue to be a failure of the Service to work as designed, the affected vehicle(s) shall be released from this Agreement.

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8. LIMITED SOFTWARE LICENSE

8a. Grant of License. By accessing, browsing, or using this Software and/or the Silent Passenger® website, Customer agrees to be bound by the terms and conditions of this Agreement. In conjunction with and for the sole purpose of providing VTS Services, VTS and its suppliers grant Customer a nonexclusive, nontransferable, revocable, limited license (hereinafter the “License”) to browse, access and make use of the services, information, data, software, files, and images contained in or generated by the software and accompanying data on the Silent Passenger website, (collectively, the “Software” or when used in conjunction with any Third Party Software as defined below, the “VTS Software System”), strictly subject to and in accordance with the terms and conditions of this Agreement. No other rights are granted.

8b. Third Party Software. All Third-Party Software is licensed to Customer in accordance with a separate license Agreement(s) included with the VTS Software System, and subject to any restrictions set forth herein. Customer agrees to abide by the terms and conditions of the Third-Party Software license agreements. VTS will have no responsibility with respect to any Third-Party Software, and Customer will look solely to the licensor(s) of the Third-Party Software for any remedy. VTS claims no right in the Third-Party Software, and the same is owned exclusively by the licensor(s) of the Third-Party Software. VTS provides no warranty, express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, with respect to any Third-Party software.

8c. Restrictions.VTS retains all rights, title, interest and ownership of the Software (but not any Third-Party Software) including, without limitation, any express or implied rights or licenses under any patents, trademarks, copyrights, or other proprietary or intellectual property rights.

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9. BILLING, TAXES, AND AUTHORIZATIONS

9.a. Monthly Invoice. VTS will provide Customer with a monthly invoice and Customer will pay the monthly invoice net 30 from invoice date. Customer shall pay all invoices in full by check, credit card, or via Electronic Funds Transfer (“EFT”) on or before the due date shown on each invoice.

9.b. Taxes and Additional Charges. Any applicable taxes paid by VTS as a result of providing Services to Customer will be invoiced to and paid by Customer. If Customer is exempt from payment of any such taxes, Customer will provide VTS with documentation sufficient to verify Customer’s tax-exempt status prior to invoice.

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10. INVOICING AND PROCESSING FEE

Throughout the term of this Agreement Customer authorizes VTS to electronically deduct all payments and related fees incurred under this Agreement, including regular recurring payments and/or one-time payments from time to time incurred by Customer. VTS utilizes paperless invoices and automatic credit card or ACH payments are required.

10a. Late Payment Penalty. VTS reserves the right to impose a late payment penalty charge of one and a half percent (1.5%) percent per month for all invoices not paid within thirty (30) days from the invoice date.

10b. Bounced Check and Credit Card Chargebacks.  Each occurrence of a bounced/dishonored check, ACH debit or Customer-initiated credit card chargeback will result in a fifty dollar ($50.00) administrative fee assessed to the Customer’s account.

10c. Notice of Disputes.  Customer shall pay all properly invoiced and undisputed amounts due to VTS within 30 days after Customer’s receipt of an invoice. The Customer shall provide Notice of any dispute in writing no later than fifteen (15) days following the date of the invoice or the Customer’s right to object shall be deemed waived and the invoice shall be deemed accepted by Customer. The written Notice must include a detailed statement specifying the disputed amount and the reason for the dispute.

10d. Credit Card Disputes. In the event that Customer has notified its credit card issuing financial institution of a payment dispute, Customer agrees that proof of Service usage by Customer constitutes Customer authorization to submit payment request to credit card issuing financial institution.

10e. Collection. In the event VTS is forced to institute legal action to recover any amount owed by Customer to VTS and in addition, the prevailing party in any such litigation between the parties to enforce the terms of this Agreement shall pay the other parties reasonable legal fees, costs and expenses. VTS reserves the right, based on payment history, to verify credit throughout the term of this Agreement.

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11. ACCOUNT SUSPENSION, TERMINATION FEE

11a. Account Suspension/Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach. In the event of Termination on the part of Customer due to VTS uncured breach, no Termination fees on the part of Customer shall be due to VTS as identified in Section 11b.
In the event Customer fails to pay any amount when due hereunder or fails to perform any other of Customer’s obligations, Customer will be in default. In any such circumstances, VTS may, in its sole discretion (a) require Customer to pay all amounts then due and owing; (b) suspend Customer’s account and deny Customer’s and its users’ access to and use of the Service or Additional Services until Customer’s account is in good standing, or (c) terminate this Agreement and Customer’s and its users’ access to and the use of the Service.

11b. Early Termination Charge. Customer agrees that the charges due under the contract are based on their Agreement to receive and to pay for services for the full initial term. In the event that Customer terminates this contract during its initial term, Customer will pay VTS an amount equal to seventy-five percent (75%) of the remaining fees in the initial term of this contract. This amount is a contract termination charge and is not a penalty, and relates to the initial costs incurred by VTS normally recovered during the contract term. All VTS Equipment must be returned in good working order, in accordance with the terms of this Agreement within 15 days of such Termination.

11c. Indemnity. To the fullest extent permitted by law, VTS shall indemnify and hold harmless Customer, Customer’s officers, directors, partners, and employees from and against any and all costs, losses and damages (including but not limited to reasonable attorneys’ fees and all court or other dispute resolution costs) arising from the performance of the Service, to the extent caused by the negligent acts, failure to comply with any applicable laws or errors or omissions of VTS or VTS’s officers, directors, partners, employees, agents and VTS’s or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable in the performance and furnishing of VTS’s services under this Agreement.

To the fullest extent permitted by law, Customer shall indemnify and hold harmless VTS, VTS’s officers, directors, partners, and employees from and against any and all costs, losses and damages (including but not limited to reasonable attorneys’ fees and all court or other dispute resolution costs) arising from Customer’s use of the Services, to the extent caused by the negligent acts, failure to comply with any applicable laws or errors or omissions of Customer or Customer’s officers, directors, partners, employees, agents and Customer’s or anyone employed directly or indirectly by any of them or by anyone for whose acts any of them may be liable in the performance and furnishing of VTS’s services under this Agreement.

The terms of this section will survive any termination or cancellation of this Agreement.

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12. LIMITATION OF LIABILITY

VTS is not liable for any act or omission of any common carrier or other service provider, interconnection service provider, and/or any equipment failure or modification, acts of God, strikes, fire, war, riot, government actions, or other causes. VTS is not liable for service outages or other service failures. VTS is not liable for injuries to persons or property arising from the use of Customer’s equipment or the Service. Customer agrees that VTS’s liability, and your exclusive remedy, in law, equity, or otherwise, with respect any VTS service(s) provided under this Agreement and/or for any breach of this Agreement is solely limited to the amount Customer paid for such service(s) during the term of this Agreement. In no event, will VTS be liable to the customer or any third party for any indirect, special, incidental, consequential, exemplary, or punitive loss or damage of any kind, including lost profits, loss of business or for lost or corrupted data or software (whether or not VTS has been advised of the possibility of such loss or damages) by reason of any act or omission in its performance under this Agreement. To the extent that a state does not permit the exclusion or limitation of liability as set forth herein Vehicle Tracking Solutions’ liability is limited to the extent permitted by law in such state.

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13. ASSIGNMENT

The Agreement is fully assignable and transferable by VTS to any person or entity and shall inure to the benefit of such assignee or successor upon written consent of Customer, such consent shall not be unreasonably withheld. Unless assumed by an assignee in writing, all obligations of VTS hereunder shall remain the sole liability of VTS. Customer may not assign the Agreement without the prior written consent of VTS.

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14. ENTIRE AGREEMENT

This Agreement constitutes our entire agreement. By signing the Order Form Customer admits that it is not relying on VTS’ advice or advertisements. Customer agrees that it and VTS are not bound by any representation, promise, condition, inducement or warranty, express or implied, that is not included in writing in this Agreement. The terms and conditions of this Agreement apply as printed without alteration or qualification, unless a change is approved in writing by authorized representatives of Customer and VTS. The terms and conditions of this Agreement, the Service Level Agreement, Order Form and VTS Certificate of Insurance shall govern even if Customer submitted a purchase order or other document with inconsistent or additional terms and conditions. If a court determines that any provision of this Agreement is invalid or unenforceable, that provision shall be deemed amended and enforced to the maximum extent permitted by state law, however, each and every other provision of this Agreement shall continue to be valid and enforceable.

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15. NOTICES

The parties agree that this Agreement is governed by New York State law regardless of any conflicts and that any and all lawsuits, claims, disputes, or controversies (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, and equitable claims) arising from or related to this Agreement, shall be brought in the Supreme Court of the State of New York, County of Suffolk. Customer waives personal service of any legal process and consents that service of process may be made by the US Postal Service by certified or registered mail.

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16. GOVERNING LAW AND VENUE

The parties agree that this Agreement is governed by New York State law regardless of any conflicts and that any, and all lawsuits, claims, disputes, or controversies (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, and equitable claims) arising from or related to this Agreement, shall be brought in the Supreme Court of the State of New York, County of Suffolk. Customer waives personal service of any legal process and consents that service of process may be made by the US Postal Service by certified or registered mail.

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17. CONFLICT

In the event of a conflict between these General Terms and Conditions and any Additional Terms and Conditions as noted in the VTS Order Form, the Additional Terms and Conditions shall supersede and take precedence.

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18. OTHER

Authorized Signers of this Agreement or any Add On orders shall be limited to any authorized Silent Passenger Administrative User, unless otherwise specified in writing.

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VERSION NUMBER 3.0SPS(CW) – AUGUST 2017